Fred Korematsu and the Forgotten Legacy of Lies

Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.

Fred Korematsu and the Presidential Medal of Freedom.

After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).
The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”
Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.
With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.
But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.
The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.
As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983--more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”
In 2011, the Acting Solicitor General stated:

By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.
Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.
Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

Comments

The lies being put forward by the Trump administration in support of its Muslim ban not only bring back the reminders of the infamous Korematsu decision, but also of the equally infamous Supreme Court Chinese exclusion case, Chae Chan Ping (1889) and the bigoted racial exclusion laws which were the basis of America's immigration policy at that time, and to which we owe the Plenary Power doctrine which the DOJ is relying on as hoped for protection against having the courts look into closely into the administrations argument to support the president's latest version of his Muslim ban executive order.

The DOJ's arguments before the 4th and 9th Circuits that the Muslim ban somehow is not really a Muslim ban run so far afoul of the good faith requirement for government actions barring immigrants set forth by the Supreme Court in Kleindienst v. Mandel (1972), that, as I have suggested in my own recent ilw.com comments, they could arguably amount to a fraud upon the court.

As I was writing the above, the news has just broken that the full 4th Circuit Court of Appeals has just upheld the lower court's order blocking Trump's six country Muslim ban order.

In the brief summary of that decision which I have seen so far, the Court held that while the president's power to ban immigrants is extensive, it is not absolute.

In other words, Donald Trump is a president, not a king, when it comes to immigration policy.

Roger Algase
Attorney at Law

Please read the entire decision, including the dissenting views, before you decide whether to accept Roger's conclusion.

Roger's comments on Trump remind me of the joke about the Pope's hat.

The Pope is on a yacht fishing with Trump when his hat blows off and falls into the ocean. The Pope orders one of his guards to jump in a fetch it. Trump stops the guard and says, "Let me do it.' Trump then hops off the yacht and walks across the water to pick up the hat and then walks it back to the yacht.

I appreciate that perspective - and your article. However, it does not address the main point of my piece above, which is that the US government lied to the Supreme Court about the threat posed by Japanese Americans. Had that information been know, perhaps the Court would have ruled differently. Maybe not, but we will never know. The problem is when one branch of government (executive) effectively subverts another, it damages our democratic system and - in the case of Japanese Americans during WWII and Muslim Americans today - threatens our liberty. Take care, Jason

I appreciate that perspective - and your article. However, it does not address the main point of my piece above, which is that the US government lied to the Supreme Court about the threat posed by Japanese Americans. Had that information been know, perhaps the Court would have ruled differently. Maybe not, but we will never know. The problem is when one branch of government (executive) effectively subverts another, it damages our democratic system and - in the case of Japanese Americans during WWII and Muslim Americans today - threatens our liberty. Take care, Jason

You are right. I was reacting to more to Roger's comments than to your article. I should have been more careful about what I said.

But I do have concerns about your article. i worked for the Intelligence and Analysis Office of DHS for two years as a policy advisor, which gave me a good understanding of our classified information system. The information involved in the decision making process for the Japanese internment was highly classified information, particularly while the war was going on. And the classified status would have continued until someone with the authority to do it declassified it. If that never happened, it could still be classified. I don't know.

This means that anyone revealing the information would have been subject to being prosecuted for a serious felony, and if it is still classified, that is still true.

I do not know the rules on what the gov't had to release to the courts or the supreme court, but I am absolutely sure that they did not release any more than they had to.

In other words, you have produced evidence that information indicating that the internment wasn't justified was withheld, but I don't know why it was withheld or whether it would have been significant if all of the information the interment decision was based on was revealed. It might have been withheld because it was classified....or because it would have revealed the sources of the classified information.

The bottom line is that our gov't, particularly our president, has to make decisions based on classified information that can't be revealed. And this is particularly true during a war.

d) The unauthorized disclosure of foreign government information is pre-
sumed to cause damage to the national security.

Sec. 1.2. Classification Levels.

(a) Information may be classified at one of
the following three levels:

(1) ‘‘Top Secret’’ shall be applied to information, the unauthorized disclo-
sure of which reasonably could be expected to cause exceptionally grave
damage to the national security that the original classification authority
is able to identify or describe.

(2) ‘‘Secret’’ shall be applied to information, the unauthorized disclosure
of which reasonably could be expected to cause serious damage to the
national security that the original classification authority is able to identify
or describe.

(3) ‘‘Confidential’’ shall be applied to information, the unauthorized disclo-
sure of which reasonably could be expected to cause damage to the national
security that the original classification authority is able to identify or
describe.